October 26, 2012
DAVID J. TAYOUN, PLAINTIFF-APPELLANT,
TIMOTHY MOONEY, JOHN MOONEY, DOMINIC CAPELLA, ROBERT LEVY A/K/A BOB LEVY, KIMBERLY BALDWIN, ESQ., KAREN UPSHAW, ANTHONY COX, TIMOTHY MANCUSO, WILLIAM MARSH, DENNIS MASON, JOYCE MOLLINEAUX, EUGENE ROBINSON, JOHN SCHULTZ, GEORGE TIBBIT AND G. BRUCE WARD, DEFENDANTS, AND CITY OF ATLANTIC CITY, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1897-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 8, 2012
Before Judges Yannotti, Espinosa and Kennedy.
Plaintiff David Tayoun appeals from the Law Division's order granting summary judgment to defendant, City of Atlantic City (the City), dismissing plaintiff's complaint alleging violations of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14 (CEPA), and the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2 (the CRA). We have considered the arguments raised in light of the motion record and applicable legal standards. We affirm.
The motion record revealed that in January 2006 plaintiff was appointed by the City's newly elected Mayor, Robert Levy, as Director of the City's Neighborhood Services Department (NSD). The NSD oversees the "regulatory functions of the City," according to plaintiff, and comprises the Division of Code Enforcement, the Mercantile Division, the Construction Division and Landlord/Tenant Affairs. The heads of each Division report to and are supervised by the NSD Director, who is responsible for the overall functioning of the department.
On March 13, 2006, plaintiff prepared a memorandum to the City's business administrator requesting the termination of a field inspector in the Code Enforcement Division, alleging that the inspector was incompetent and had been accused of soliciting bribes. Similarly, on March 23, 2006, plaintiff prepared memoranda to the business administrator recommending the termination of another field inspector for incompetence and unethical conduct, and the Division's chief inspector for "covering up" the alleged derelictions of those he supervised.
Domenic Cappella,*fn1 the City's business administrator, testified at his deposition that he received the memoranda and removed from duty the inspector accused of taking bribes, pending a police investigation, which later "failed to uncover any criminal activity" by the inspector. He added that the other two employees remained on the City payroll, but that they would have been removed had the allegations been "credible."
Plaintiff also told the business administrator that he had received complaints from staff that the head of the Mercantile Division was "drinking on the job" and that a clerk in that division was also "either drinking or actually intoxicated on the job." The head of the Mercantile Division was a City police sergeant who was related to the Chief of Police. Cappella recalled plaintiff telling him that he "ought to check" on the head of the Mercantile Division and that, in response, he "might have" asked the Chief of Police to follow up on the complaint. He added that plaintiff, as the "direct boss" of the Mercantile Division head, could have taken "direct action" against the individual by "sen[ding] him home" and notifying Cappella if the individual was found to be intoxicated on the job.
Plaintiff further stated that the head of the Mercantile Division was quoted in a newspaper article "as being aware of integrity issues" within the Division in connection with the licensing of taxicabs. Plaintiff claimed that taxicab licensees were "illegal[ly] subleasing" their licenses to more drivers than the City's ordinance would permit. While the actual requirements of the ordinance at that time remained disputed,*fn2 plaintiff in October 2006 ordered a Mercantile Division clerk to deny licenses to an taxicab owner who had more than two registered drivers. Plaintiff contends that he thereafter received a call from the Office of the City Solicitor rescinding plaintiff's order.
Plaintiff further alleged that he voiced objections about the conduct and work performance of other subordinates in the NSD, but that neither the business manager nor the Mayor disciplined, investigated or terminated those individuals.
Plaintiff claimed that on October 18, 2006, he was "wrongfully terminated" by a letter "hand delivered" to him by the Mayor. The letter stated: "Please be advised that you are hereby terminated effective Wednesday, October 18, 2006, close of business" and that "your service has been appreciated."
The mayor conceded at his deposition that he had not provided the municipal council with notice of his intention to terminate plaintiff and that he never gave plaintiff an opportunity to be heard on his termination. Plaintiff also did not request such a hearing.
On June 5, 2007, plaintiff filed a complaint against the City, members of the municipal council, the Mayor, the business administrator and various city employees. In his complaint, plaintiff alleged that he was discharged in retaliation for engaging "in protected conduct by objecting to unlawful activity" in violation of CEPA. In count two of his complaint, plaintiff alleged that his discharge violated N.J.S.A. 40:69A-43, which required the mayor to notify the council of his intent to discharge and give plaintiff "an opportunity to be heard."
Plaintiff alleged that the failure to comply with the statute violated plaintiff's rights under the CRA.
Following discovery, the City moved for summary judgment. The motion judge granted the motion and stated, in pertinent part:
[Plaintiff] objected to conduct of . . . 8 or 9 different people and all of those people were his subordinates. None of those people were at his level. None of those people were above him. They were all people who were responsible and answerable to him, people over whom he had direct supervisory responsibilities. His memo to the City Administrator . . . didn't take away his ability to exercise any independent actions of his own. He didn't begin a disciplinary process as to anybody. He didn't go to the Prosecutor's Office as to anybody. He - -he didn't file criminal charges against anybody, but he complains about all this illegal conduct of people that are answerable to him [by] . . . writ[ing] one memo to . . . the City Administrator saying, you know, I got some bad people working for me. I'm not - - I'm not sure that, you know, that's whistleblowing. In fact, I'm confident that the objections that he raised concerning his subordinates doesn't . . . satisfy whistleblowing.
The judge also dismissed plaintiff's claims under the CRA, explaining that because plaintiff was concededly an at-will employee, defendant's actions affected no "substantive due process rights" of the plaintiff.
Plaintiff thereafter moved for reconsideration and recusal of the motion judge. The latter motion was based on a claim that the motion judge demonstrated a bias against employment lawsuits against the City when, in a 2010 written opinion, he stated, "[i]n Atlantic City, employment lawsuits are the continuation of politics by other means" and characterized such suits as a "plague on the body politic . . . ." The motions were denied and this appeal followed.*fn3
Plaintiff argues on appeal that the motion judge erred in dismissing his CEPA claim because "his protected conduct was not a part of his day-to-day job duties" and "even if it was, it would still be protected under CEPA." Plaintiff also argues the judge erred in dismissing his claim under the CRA because "all public employees have a [substantive due process] property interest in their continued public employment," and because the mayor did not follow the requirements of N.J.S.A. 40:39A-43 upon discharging plaintiff. Further, plaintiff asserts the judge erred by not recusing himself.
We conduct our review of a grant of summary judgment de novo applying the same standards that governed the trial court.
Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). To the extent factual disputes exist, we accord plaintiff the benefit of all favorable evidence and inferences in the motion record. Henry, supra, 204 N.J. at 329; see also R. 4:46-2(c). We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 231. In doing so, we owe no deference to the motion judge's conclusions on issues of law. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
We begin our analysis by noting that, "[i]n New Jersey, an employer may fire an employee for good reason, bad reason, or no reason at all under the employment-at-will doctrine." Witkowski v. Thomas J. Lipton Inc., 136 N.J. 385, 397 (1994) (citing English v. Coll. of Med. & Dentistry, 73 N.J. 20, 23 (1977)). The only exceptions under state laws are when there is a claim that the employer has violated CEPA; the CRA; the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49; or a contractual right or an implied contract based on an employee manual pursuant to the holding in Wade v. Kessler Inst., 172 N.J. 327, 339 (2002).
The Supreme Court has noted that "CEPA codified the common-law cause of action, first recognized in Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 72 (1980), which protects at-will employees who have been discharged in violation of a clear mandate of public policy." Higgins v. Pascack Valley Hosp., 158 N.J. 404, 417-18 (1999). "Thus, the CEPA establishes a statutory exception to the general rule that an employer may terminate an at-will employee with or without cause." Ibid. (citing Pierce, supra, 84 N.J. at 65).
CEPA provides, in relevant part, that:
[a]n employer shall not take any retaliatory action against an employee because the employee does any of the following: a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer . . . that the employee reasonably believes: (1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . .
(2) is fraudulent or criminal . . . or c. Objects to or refuses to participate in any activity, policy or practice which the employee reasonably believes: (1) is in violation of a law, or a rule or regulation promulgated pursuant to law [;] . . . (2) is fraudulent or criminal; or (3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment. [N.J.S.A. 34:19-3.]
"The purpose of CEPA . . . is to protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct." Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994).
To succeed on a CEPA claim, a plaintiff must prove four elements: (1) that the plaintiff reasonably believed that employer's conduct violated a law, a regulation or a clear mandate of public policy; (2) that the plaintiff performed "whistle-blowing activity" as defined in CEPA; (3) that an adverse employment action has been taken against him or her; and (4) that the whistle-blowing activity caused such adverse employment action. See Kolb v. Burns, 320 N.J. Super. 467, 476 (App. Div. 1999). At base, CEPA covers employee complaints about activities the employee reasonably believes are: (i) in violation of specific statute or regulation; (ii) fraudulent or criminal; or (iii) incompatible with policies concerning public health, safety or welfare or the protection of the environment. See Estate of Roach v. TRW, Inc., 164 N.J. 598, 610 (1999). Importantly, "CEPA does not require that the activity complained of . . . be an actual violation of a law or regulation, only that the employee 'reasonably believes' that to be the case." Id. at 613.
Once a plaintiff has established a prima facie case under CEPA, courts employ the well-established burden-shifting analysis that is used in federal discrimination cases involving "pretext" claims. See Zappasodi v. New Jersey, Dept. of Corrections, 335 N.J. Super. 83, 89 (App. Div. 2000); Blackburn v. United Parcel Services, Inc., 179 F.3d 81, 92 (3d Cir. 1999). Under this test, "the burden of production shifts to the defendant to 'articulate some legitimate, nondiscriminatory reason' for its actions." Woodson v. Scott Paper Co., 109 F.3d 913, 920 n.2 (3d Cir.) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), cert. denied, 522 U.S. 914 (1997)). Once the defendant articulates a legitimate reason for the adverse employment action, the presumption of retaliatory discharge created by the prima facie case disappears and the burden shifts back to the plaintiff. See ibid.; Klein v. Univ. of Medicine & Dentistry of N.J., 377 N.J. Super. 28, 39 (App. Div.), certif. denied, 185 N.J. 39 (2005). Then, "[t]o prevail at trial, the plaintiff must convince the factfinder 'both that the reason [given by the employer] was false, and that [retaliation] was the real reason.'" Woodson, supra, 109 F.3d at 920 n.2 (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993)).
For summary judgment purposes, the court must determine whether the plaintiff has offered sufficient evidence for a reasonable jury to find that the employer's proffered reason for the discharge was pretextual and that retaliation for the whistle-blowing was the real reason for the discharge. Klein, supra, 377 N.J. Super. at 39; see Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir. 1995). ("[T]o defeat a summary judgment motion based on a defendant's proffer of a nondiscriminatory reason, a plaintiff who has made a prima facie showing of discrimination need only point to evidence establishing a reasonable inference that the employer's proffered explanation is unworthy of credence."). Typically, the types of evidence that the plaintiff must point to are "inconsistencies or anomalies that could support an inference that the employer did not act for its stated reasons." Id. at 731.
Because we conclude that defendant's allegations do not constitute "whistle blowing" activity, we need not address whether issues of fact exist as to the other elements of a CEPA claim, or whether plaintiff has advanced sufficient evidence which would allow a reasonable jury to find that the reasons advanced by defendant for plaintiff's discharge are pretextual.
Plaintiff alleges he engaged in CEPA-protected conduct by disclosing and objecting to activities of his subordinates that he "reasonably believed" violated the ordinances and policies of the City or, in some cases, the laws of the State of New Jersey. However, such disclosures and objections are a regular part of plaintiff's supervisory job responsibilities as Director of the NSD. Consequently, plaintiff's disclosures and objections, in the context of these facts, cannot constitute "whistle blowing" under CEPA.
Far from disclosing or threatening to disclose to a supervisor or public body, N.J.S.A. 34:19-3(a), or objecting to or refusing to participate in, N.J.S.A. 34:19-3(c), the employer's activity, policy, or practice that was contrary to law or public policy, plaintiff describes his protected conduct as enforcement of the City's policies and ordinances. Plaintiff contends that by refusing to overlook the alleged derelictions of duty of his staff, he refused to participate in conduct that he "reasonably believed to be in violation of the law." We disagree, as did the trial court, that plaintiff's job duties could also be the protected whistle-blowing conduct under CEPA in the circumstances presented here.
To support his argument, plaintiff contends that CEPA treats fellow employees in the same way as an employer, and his subordinates' practices were an activity or practice of the City that plaintiff reasonably believed was in violation of law and public policy. Plaintiff's argument fails for two reasons.
First, CEPA has separate definitions for "employee" and "employer." See N.J.S.A. 34:19-2(a), -2(b). An employee is "any individual who performs services for and under the control and direction of an employer for wages or other remuneration." Ibid. The purportedly errant staff members within the NSD were thus employees.
Maw v. Advanced Clinical Communications, Inc., 359 N.J. Super. 420, 440 (App. Div. 2003), rev'd on other grounds, 179 N.J. 439 (2004), held that an employee, as well as the employer, is subject to the prohibitions of CEPA. That holding, however, requires that the employee be acting "on behalf of or in the interest of an employer with the employer's consent." Ibid. (quoting N.J.S.A. 34:19-2(a)). In this case, by contrast, there is no suggestion that plaintiff's alleged errant subordinates were acting on behalf of the City by undertaking the alleged proscribed conduct.
We recognize that the Supreme Court held in Higgins, supra, 158 N.J. at 418-24, that a plaintiff's complaints regarding the improper activities of co-employees are protected by CEPA against retaliation. The Court stated:
Nothing indicates that the Legislature intended that the CEPA's expansive protection should depend on a strict parsing of employer and employee conduct . . . . A solitary employee may not be able to determine whether an illegal activity is the isolated act of a single co-employee or a systemic practice. When an employee complains of the wrongdoing, he or she may not know whether the employer will condone the act. Failure to protect complaining employees therefore will inhibit them from reporting practices for which they reasonably believe their employer is responsible. [Id. at 421.]
The holding of Higgins, however, was in the context of a plaintiff lodging complaints of co-employee conduct in isolated situations outside the plaintiff's job duties. When an employer has assigned plaintiff the express task of supervising its employees, the employer cannot reasonably be viewed as having condoned the alleged misconduct of those subordinate employees. Under the circumstances, the alleged misconduct of such employees cannot be fairly be attributed to the employer.
In support of his position, plaintiff notes our expansive reading of CEPA in Hernandez v. Montville Twp. Bd. of Educ., 354 N.J. Super 467 (App. Div. 2002), aff'd, 179 N.J. 81 (2004). In Hernandez, we reinstated a jury verdict in a case where the plaintiff, an elementary school janitor, reported the school's failure to timely remedy unsanitary and unsafe conditions. Id. at 477. In addition, plaintiff points to Mehlman v. Mobil Oil Corp., 153 N.J. 163 (1998) (plaintiff objected to overseas sale by defendant's subsidiary of gasoline with benzene in excess of five percent); Abbamont, supra, 138 N.J. 405 (art teacher fired after complaining of unsafe facilities); Turner v. Assoc. Humane Societies, 396 N.J. Super. 582 (App. Div. 2007)(clerical employee fired after objecting to sale of vicious dog to unsuspecting person); Gerard v. Camden Cnty. Health Services Cntr., 348 N.J. Super. 516 (App Div. 2002) (assistant director of nursing discharged after refusing to comply with her supervisor's order to bring charges against a nurse). However, none of the cases cited by plaintiff concern situations where an employee was discharged for undertaking the very supervisory activities he or she was hired to undertake in the first instance. Plaintiff cites no authority that extends whistle-blower protection for undertaking the very duties of one's job.
The performance of one's job duties cannot be considered whistle-blowing conduct in these circumstances. See Massarano v. N.J. Transit, 400 N.J. Super. 474, 491 (App. Div. 2008) (holding that a plaintiff carrying out her designated job responsibilities in reporting what she believed was improper disposal of documents did not qualify for whistle-blower status). Plaintiff does not establish a prima facie case based on the elements set forth in Dzwonar v. McDevitt, 177 N.J. 451 (2003), because he cannot show that he reasonably believed his "employer's conduct" was violating a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy. 177 N.J. at 462. Rather, plaintiff here believed that those he was charged with supervising were not performing their job functions appropriately or, in some cases, lawfully. However, it was plaintiff's duty to supervise these employees, and plaintiff's complaints about their job performance cannot constitute "whistle-blowing" under CEPA.
In Massarano, the plaintiff worked for New Jersey Transit as a security operations manager, which included supervision of security personnel in New Jersey and New York City. 400 N.J. Super. at 478-88. In that role, she "'discussed everything'" with her supervisor, Frank Fittipoldi, who also "participated in and approved [the] plaintiff's assignments and proposals." Id. at 478.
The plaintiff was advised by the Newark building supervisor "that he saw some schematics that were discarded in a bin on the loading dock of the Newark building." Id. at 479. The schematics contained detailed drawings of transit facilities in both New Jersey and New York. Because she was "concerned that anyone could enter the loading area and retrieve the discarded plans" which arguably could have resulted in a threat to public safety, plaintiff contacted the acting executive director. When Fittipoldi returned, the "plaintiff informed him of the discarded documents." Id. at 480. Fittipoldi became irate that plaintiff had directly contacted his superior. Relations between plaintiff and Fittipoldi declined rapidly thereafter, leading to plaintiff's alleged involuntary "resignation." Ibid.
The trial court dismissed the plaintiff's retaliation claims under CEPA. Among other contentions, the plaintiff in Massarano argued on appeal that "the trial court erred in determining that [she] was not a whistle-blower within the meaning of N.J.S.A. 34:19-3(c)(1) and (2)." Id. at 488. We rejected that argument, and agreed "with the trial court's analysis that [the] plaintiff was merely doing her job as the security operations manager by reporting her findings and her opinion to [the acting executive director]." Id. at 491. A plaintiff who reports conduct, as part of his or her job, is not a whistle-blower whose activity is protected under CEPA. Ibid.
Plaintiff's attempt at distinguishing our holding in Massarano by contending that he not only was doing his job, but also was objecting to numerous violations of the law, is unavailing. Plaintiff testified that it was his job to supervise and set policies for employees in the NSD. In that capacity, he communicated with the business administrator concerning alleged violations of law and policy. His job was to ensure that these alleged violations were addressed and corrected.
Thus, like the plaintiff in Massarano, supra, 400 N.J. Super. 474, the record here shows that, as part of his job, plaintiff reported violations of law to his supervisor as well as others in management to keep them abreast of the situation and to advise them of the action he proposed to take. Stated differently, plaintiff did not engage in the activities covered and protected by CEPA.
With respect to his claim under the CRA, plaintiff argues that he is entitled to a substantive due process property right in public employment. The law is otherwise.
The CRA provides, in pertinent part, that:
[a]ny person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State . . . may bring a civil action for damages and for injunctive or other appropriate relief. [N.J.S.A. 10:6-2(c).]
The Legislature adopted the CRA "for the broad purpose of assuring a state law cause of action for violations of state and federal constitutional rights and to fill any gaps in state statutory anti-discrimination protection." Owens v. Feigin, 194 N.J. 607, 611 (2008) (citation omitted). The CRA was modeled after 42 U.S.C.A. § 1983. Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 114-15 (App. Div.), certif. denied, 208 N.J. 366 (2011). The CRA has been interpreted analogously with Section 1983. See Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 443 (D.N.J. 2011).
In Filgueiras v. Newark Public Schools, 426 N.J. Super. 449, 468-69 (App. Div. 2012), another case in which we considered a claim pleaded under the CRA, we recently held:
To establish a § 1983 claim, "the first task . . . is to identify the state actor, 'the person acting under color of law,' that has caused the alleged deprivation." Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352, 363 (citing Monell v. City Dep't of Social Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611, 636 (1978)), cert. denied, 519 U.S. 911, 117 S. Ct. 275, 136 L. Ed. 2d 198 (1996). "The second task is to identify a 'right, privilege or immunity' secured to the claimant by the Constitution or other federal laws of the United States." Ibid. (quoting 42 U.S.C.A. § 1983). Thus, Section 1983 "'is not itself a source of substantive rights,' but merely provides 'a method [for] vindicating federal rights elsewhere conferred. . . .'" Ibid. (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 S. Ct. 2689, 2694 n.3, 61 L. Ed. 2d 433, 442 n.3 (1979)).
"The principle of substantive due process, founded in the federal Constitution, U.S. Const. amend XIV, § 1, and our State Constitution, N.J. Const. art. I, § 1, protects individuals from the 'arbitrary exercise of the powers of government' and 'governmental power [. . .] being used for [the] purposes of oppression.'" Felicioni v. Admin. Office of the Courts, 404 N.J. Super. 382 (App. Div. 2008) (quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S. Ct. 662, 665, 88 L. Ed. 2d 662, 668 (1986)), certif. denied, 203 N.J. 440 (2010). "However, the constitutional guarantee 'does not protect individuals from all governmental actions that infringe liberty or injure property in violation of some law.'" Ibid. (quoting Rivkin, supra, 143 N.J. at 366). "[S]ubstantive due process is reserved for the most egregious governmental abuses against liberty or property rights, abuses that 'shock the conscience or otherwise offend . . . judicial notions of fairness . . . [and that are] offensive to human dignity.'" Ibid. (second alteration in original) (quoting Rivkin, supra, 143 N.J. at 366). Accord Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008) ("To establish a substantive due process claim, a plaintiff must prove the particular interest at issue is protected by the substantive due process clause and the government's deprivation of that protected interest shocks the conscience.").
"To establish a cause of action [under the CRA], a plaintiff must allege a specific constitutional violation." Matthews v. N.J. Inst. of Tech., 717 F. Supp. 2d 447, 452 (D.N.J. 2010) (citing N.J.S.A. 10:6-2(c)). Here, plaintiff claims that the right infringed is his right to public employment under the N.J. Const. art. I, ¶ 6.
However, in Filguerias, supra, we explicitly held that there is no constitutionally protected property interest for an at-will employee in continued public employment:
"[A]n employee hired at will has no protected interest in his employment and may not prevail on a claim that his or her discharge constituted a violation of property rights." Morgan v. Union County Bd. of Chosen Freeholders, 268 N.J. Super. 337, 355 (App. Div. 1993) (citing Bd. of Regents v. Roth, 408 U.S. 564, 578, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548, 561 (1972)), certif. denied, 135 N.J. 468, 640 A.2d 850 (1994). In Nicholas v. Pa. State Univ., 227 F.3d 133, 142 (3d Cir. 2000), the court went further by concluding that "tenured public employment is [not] a fundamental property interest entitled to substantive due process protection." [426 N.J. Super. at 469-70].
Plaintiff argued in opposition to defendant's summary judgment motion, that the violation of N.J.S.A. 40:69A-43, somehow made his substantive due process claim cognizable under the CRA. However, we disagree. We note first that plaintiff's claim under the statute, read expansively, is a claim for procedural due process. The CRA, as noted, only protects substantive due process rights.
Also, plaintiff served at the mayor's discretion under N.J.S.A. 40:69A-43(c), and the mayor was empowered to "'remove [him] at will subject only to veto by a two-thirds vote of the whole number of the council.'" DeSoto v. Smith, 383 N.J. Super. 384, 393 (App. Div.) (quoting Hutt v. Robbins, 98 N.J. Super. 99, 105 (App. Div. 1967), certif. denied, 51 N.J. 185 (1968)), certif. denied, 187 N.J. 81 (2006). When plaintiff was terminated, the mayor did not question plaintiff's reputation. See id. at 394 (stating that mayor's termination of plaintiff under such circumstances does not implicate a liberty or property interest). Hurdleston v. New Century Fin. Servs., 629 F. Supp. 2d 434, 443 (D.N.J. 2009).
Secondly, we note that N.J.S.A. 40:69A-43(c) provides that the mayor may "in his discretion" remove any department head, and the removal becomes effective on the twentieth day after the mayor gives written notice of his intention to the council, unless the council before that date adopts a resolution by a two-thirds vote disapproving the removal. Here, plaintiff never requested an opportunity to be heard on his removal, and the council, by virtue of this suit, was on notice of the removal and could have disapproved it. It did not. The council thus effectively ratified the mayor's decision. Stomel v. City of Camden, 192 N.J. 137, 152 (2007) ("the Council effectively ratified the Mayor's action when it did not exercise its veto power.").
Finally, we determine that plaintiff's argument that the motion judge erred when he did not recuse himself on plaintiff's motion brought after the grant of summary judgment, to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).